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EXHIBIT 10.2.1
FIRST AMENDMENT TO CANADIAN CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CANADIAN CREDIT AGREEMENT (herein called the
"Amendment") made as of March 1, 2001 by and among Northstar Energy Corporation,
an Alberta corporation, "Canadian Borrower"), Bank of America Canada,
individually and as administrative agent ("Canadian Agent"), and the Canadian
Lenders party to the Original Agreement defined below ("Canadian Lenders").
WITNESSETH:
WHEREAS, Canadian Borrowers, Canadian Agent and Canadian Lenders
entered into that certain Canadian Credit Agreement dated as of August 29, 2000
(as amended, supplemented, or restated to the date hereof, the "Original
Agreement"), for the purpose and consideration therein expressed, whereby
Canadian Lenders became obligated to make loans to Canadian Borrowers as therein
provided;
WHEREAS, on January 1, 2001 Northstar Energy, Devon Energy Canada
Holding Corporation (the successor by amalgamation to Devon Energy Canada) and
certain other Alberta corporations, all of which were Subsidiaries of US
Borrower, amalgamated under the name Northstar Energy Corporation (defined above
as the "Canadian Borrower") which is now the sole Canadian Borrower;
WHEREAS, US Borrower has filed a Registration Statement on Form S-3
under the Securities Act of 1933 on November 16, 2000, with respect to the
issuance by US Borrower of Common Stock, Preferred Stock, Debt Securities, Stock
Purchase Agreements and Stock Purchase Units and the issuance by Devon Financing
Trust II of Trust Preferred Securities guaranteed by US Borrower;
WHEREAS, in connection with the issuance of such securities, Canadian
Borrower, Canadian Agent and Canadian Lenders desire to amend the Original
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Agreement, in
consideration of the loans which may hereafter be made by Canadian Lenders to
Canadian Borrower, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree as follows:
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ARTICLE I.
Definitions and References
Section 1.1. Terms Defined in the Original Agreement. Unless the
context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the Original Agreement shall have the same meanings whenever
used in this Amendment.
Section 1.2. Other Defined Terms. Unless the context otherwise
requires, the following terms when used in this Amendment shall have the
meanings assigned to them in this Section 1.2.
"Amendment" means this First Amendment to Canadian Credit
Agreement.
"Amendment Documents" means this Amendment and any other
documents delivered to Canadian Agent pursuant to Article III.
"Canadian Agreement" means the Original Agreement as amended
hereby.
ARTICLE II.
Amendments to Original Agreement
Section 2.1. Defined Terms. (a) The following defined terms in Annex I
of the Original Agreement are hereby amended in their entirety to read as
follows:
"Canadian Borrower(s)" means Northstar Energy Corporation, an
amalgamated Alberta corporation resulting from the amalgamation on
January 1, 2001 of Northstar Energy, Devon Energy Canada Holding
Corporation (which in turn was formed from the prior amalgamation of
Devon Energy Canada and Devon Energy Canada Holding Corporation on
January 1, 2001) and other Alberta corporations, all of which were
wholly-owned Subsidiaries of US Borrower.
"Total Capitalization" means the sum (without duplication) of
(i) US Borrower's Consolidated Total Funded Debt plus (ii) US
Borrower's Consolidated shareholder's equity plus (iii) 60% of the
outstanding balance of the Devon Trust Securities.
"Total Funded Debt" means (i) Liabilities referred to in
clauses (a), (b), (c), (d), and (e) of the definition of
"Indebtedness", plus (ii) 40% of the outstanding balance of the Devon
Trust Securities. Total Funded Debt shall not include the PennzEnergy
Exchangeable Debentures.
(b) The following additional defined terms are hereby added to Annex I
of the Original Agreement in appropriate alphabetical order to read as follows:
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"Devon Trust" means Devon Financing Trust II, a statutory
business trust formed under the laws of the State of Delaware.
"Devon Trust Registration Statement" means the Registration
Statement on Form S-3 filed by US Borrower under the Securities Act of
1933 on November 16, 2000 with respect to the issuance by US Borrower
of Common Stock, Preferred Stock, Debt Securities, Stock Purchase
Agreements and Stock Purchase Units, and the issuance by Devon
Financing Trust II of Trust Preferred Securities guaranteed by US
Borrower, as amended and supplemented from time to time.
"Devon Trust Securities" means those certain Trust Preferred
Securities, which may be issued by Devon Trust pursuant to the
Registration Statement in an aggregate face amount not to exceed
$447,261,200.
"Subordinated US Borrower Debentures" means those certain
Convertible Junior Subordinated Debentures which may be issued by US
Borrower to Devon Trust pursuant to the Registration Statement in an
aggregate amount not to exceed $447,261,200, which will be subordinate
to the Obligations.
(c) Section 7.4(a) of the Original Agreement is deleted and replaced
with the following:
Section 7.4. Limitation on Issuance of Securities by
Subsidiaries of US Borrower; Ownership of certain Restricted
Subsidiaries by US Borrower.
(a) Neither Canadian Borrower nor any Subsidiary of Canadian
Borrower that is a Restricted Person will issue any additional shares
of its capital stock, additional partnership interests or other
securities or any options, warrants or other rights to acquire such
additional shares, partnership interests or other securities except to
another Restricted Person which is a wholly-owned direct or indirect
Subsidiary of US Borrower unless (i) such securities are being issued
to acquire a business, directly or indirectly through the use of the
proceeds of such issuance, and (ii) such securities are convertible
into the common shares or similar securities of US Borrower and/or can
be redeemed in cash at the option of the Restricted Person that issued
such securities. In addition, (A) Canadian Borrower may issue
"Exchangeable Shares" (as defined in the Articles of Amalgamation of
Canadian Borrower and in this section called "Exchangeable Shares")
upon the terms specified in the Articles of Amalgamation of Canadian
Borrower as in effect on January 1, 2001, which terms are substantially
the same as those set forth in the Restated Articles of Incorporation
of Northstar Energy Corporation immediately prior to the amalgamation
of Canadian Borrower, and (B) Canadian Borrower may issue stock options
to its employees from time to time to acquire such Exchangeable Shares,
provided that such options are granted under a stock option plan of
Canadian Borrower and/or US Borrower.
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(d) Section 10.22 of the Original Agreement is deleted and replaced
with the following:
Section 10.22. Canadian Borrower. It is acknowledged that on
January 1, 2001 Northstar Energy, Devon Energy Canada Holding
Corporation (which in turn was formed from the prior amalgamation of
Devon Energy Canada and Devon Energy Canada Holding Corporation on
January 1, 2001) and other Alberta corporations, all of which were
wholly-owned Subsidiaries of US Borrower, amalgamated under the name
Northstar Energy Corporation and that effective January 1, 2001
Northstar Energy Corporation is the only Canadian Borrower. Effective
January 1, 2001, all references in the Original Agreement to Northstar
Energy or to Canadian Borrower(s) shall be construed as a reference to
such amalgamated corporation Northstar Energy Corporation. Northstar
Energy Corporation shall continue to be liable for all of the
obligations of Northstar Energy and Devon Energy Canada under the
Original Agreement and the other Canadian Loan Documents.
Section 2.2. Disclosure Schedule. Paragraph 6 of the Disclosure
Schedule to the Original Agreement is hereby deleted and replaced by the list
set forth in Schedule 1.
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become effective as
of the date first above written when and only when:
(a) Canadian Agent shall have received all of the following, at
Canadian Agent's office, duly executed and delivered and in form and substance
satisfactory to Canadian Agent, all of the following:
(i) the Amendment;
(ii) the written opinion of Canadian Borrower's counsel,
addressed to Canadian Agent, to the effect that this Amendment and the
other Amendment Documents have been duly authorized, executed and
delivered by Canadian Borrower and that the Canadian Agreement and the
other Amendment Documents constitute the legal, valid and binding
obligations of Canadian Borrower, enforceable in accordance with their
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency and similar laws and to
moratorium laws and other laws affecting creditors' rights generally
from time to time in effect);
(iii) a certificate of the Secretary or Assistant Secretary
and of the Chairman of the Board, President, or Vice President -
Finance of Canadian Borrower dated the date of this Amendment
certifying: (i) that resolutions adopted by the Board of Directors of
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Canadian Borrower authorize the execution, delivery and performance of
this Amendment and the other Amendment Documents by Canadian Borrower;
(ii) the names and true signatures of the officers of Canadian Borrower
authorized to sign this Amendment and the other Amendment Documents;
and (iii) that all of the representations and warranties set forth in
Article IV hereof are true and correct at and as of the time of such
effectiveness; and
(iv) such other supporting documents as Canadian Agent may
reasonably request.
(b) Canadian Borrower shall have paid, in connection with such Canadian
Loan Documents, all fees and reimbursements to be paid to Canadian Agent
pursuant to any Canadian Loan Documents, or otherwise due Canadian Agent and
including fees and disbursements of Canadian Agent's attorneys.
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of Canadian Borrower. In
order to induce each Canadian Lender to enter into this Amendment, Canadian
Borrower represents and warrants to each Canadian Lender that:
(a) The representations and warranties contained in Article V of the
Original Agreement are true and correct at and as of the time of the
effectiveness hereof, except to the extent that the facts on which such
representations and warranties are based have been changed by the extension of
credit under the Canadian Agreement.
(b) Canadian Borrower is duly authorized to execute and deliver this
Amendment and the other Amendment Documents and is and will continue to be duly
authorized to borrow monies and to perform its obligations under the Canadian
Agreement. Canadian Borrower has duly taken all corporate action necessary to
authorize the execution and delivery of this Amendment and the other Amendment
Documents and to authorize the performance of its obligations hereunder and
thereunder.
(c) The execution and delivery by Canadian Borrower of this Amendment
and the other Amendment Documents, the performance by Canadian Borrower of its
obligations hereunder and thereunder and the consummation of the transactions
contemplated hereby and thereby do not and will not conflict with any provision
of law, statute, rule or regulation or of the organizational documents and any
unanimous shareholders agreement of Canadian Borrower, or of any material
agreement, judgment, license, order or permit applicable to or binding upon
Canadian Borrower, or result in the creation of any lien, charge or encumbrance
upon any assets or properties of Canadian Borrower. Except for those which have
been obtained, no consent, approval, authorization or order of any court or
governmental authority or third party is required
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in connection with the execution and delivery by Canadian Borrower of this
Amendment and the other Amendment Documents or to consummate the transactions
contemplated hereby and thereby.
(d) When duly executed and delivered, each of this Amendment, the
Canadian Agreement and the other Amendment Documents will be a legal and binding
obligation of Canadian Borrower, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency or similar laws of general
application relating to the enforcement of creditors' rights and by equitable
principles of general application.
(e) The audited annual Consolidated financial statements of US Borrower
dated as of December 31, 1999 and the unaudited quarterly Consolidated financial
statements of US Borrower dated as of September 30, 2000 fairly present the
Consolidated financial position at such dates and the Consolidated statement of
operations and the changes in Consolidated financial position for the periods
ending on such dates for US Borrower. Copies of such financial statements have
heretofore been delivered to each Canadian Lender. Since such dates no material
adverse change has occurred in the financial condition or businesses or in the
Consolidated financial condition or businesses of US Borrower.
ARTICLE V.
Miscellaneous
Section 5.1. Ratification of Agreements. The Original Agreement as
hereby amended is hereby ratified and confirmed in all respects. The Canadian
Loan Documents, as they may be amended or affected by the various Amendment
Documents, are hereby ratified and confirmed in all respects. Any reference to
the Canadian Agreement in any Loan Document shall be deemed to be a reference to
the Original Agreement as hereby amended. The execution, delivery and
effectiveness of this Amendment and the other Amendment Documents shall not,
except as expressly provided herein or therein, operate as a waiver of any
right, power or remedy of Canadian Lenders under the Canadian Agreement, or any
other Canadian Loan Document nor constitute a waiver of any provision of the
Canadian Agreement, or any other Canadian Loan Document.
Section 5.2. Survival of Agreements. All representations, warranties,
covenants and agreements of Canadian Borrower herein shall survive the execution
and delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Loans, and shall further survive until
all of the Obligations are paid in full. All statements and agreements contained
in any certificate or instrument delivered by Canadian Borrower or any
Restricted Person hereunder or under the Canadian Agreement to any Canadian
Lender shall be deemed to constitute representations and warranties by, and/or
agreements and covenants of, Canadian Borrower under this Amendment and under
the Canadian Agreement.
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Section 5.3. Canadian Loan Documents. This Amendment is a Canadian Loan
Document, and all provisions in the Canadian Agreement pertaining to Canadian
Loan Documents apply hereto and thereto.
Section 5.4. Governing Law. This Amendment shall be governed by and
construed in accordance the laws of the Province of Alberta and any applicable
laws of Canada in all respects, including construction, validity and
performance.
Section 5.5. Counterparts; Fax. This Amendment may be separately
executed in counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Amendment. This Amendment and the other Amendment Documents may be
validly executed by facsimile or other electronic transmission.
THIS AMENDMENT AND THE OTHER CANADIAN LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
NORTHSTAR ENERGY CORPORATION
Canadian Borrower
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Vice President - Finance
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XXXX XX XXXXXXX XXXXXX
Administrative Agent, Canadian LC Issuer
and Lender
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Corporate Investment Banking
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BANK ONE CANADA
Lender
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: First Vice President
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THE CHASE MANHATTAN BANK
Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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UMB BANK
Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Community Bank President
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FIRST UNION NATIONAL BANK
Lender
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
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WESTDEUTSCHE LANDESBANK GIROZENTRALE
Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Director
By: /s/ Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: Associate
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XXX XXXX XX XXX XXXX
Lender
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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XXXXX XXXX XX XXXXXX
Lender
By: /s/ X. X. Xxxxxxxx
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Name: X. X. Xxxxxxxx
Title: Senior Manager
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SUNTRUST BANK, ATLANTA
Lender
By: /s/ Xxxxx X. Edge
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Name: Xxxxx X. Edge
Title: Director
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X.X. XXXXXX CANADA
Lender
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
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CITIBANK CANADA
Lender
By: /s/ Xxxxx K. G. Xxxxxxxx
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Name: Xxxxx K. G. Xxxxxxxx
Title: Vice President
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DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
Lender
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
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CANADIAN IMPERIAL BANK OF
COMMERCE
Lender
By: /s/ Xxxxxx Xxxxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxxxx
Title: Director
By: /s/ Xxxxx X. Perks
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Name: Xxxxx X. Perks
Title: Executive Director
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ABN AMRO BANK CANADA
Lender
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: Group Vice President
By: /s/ Xxxxxx Xx
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Name: Xxxxxx Xx
Title: Vice President
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BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH
Lender
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
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THE FUJI BANK, LIMITED
Lender
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President &
Manager
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CREDIT LYONNAIS (New York Branch)
Lender
By: /s/ Philippe Soustra
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Name: Philippe Soustra
Title: Senior Vice President
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TOKYO - MITSUBISHI
(CANADA)
Lender
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
